UNION OF INDIA Vs. NARAYAN KUMAR JAIN

JUDGEMENT

(1.) THE above writ appeal has been filed by the authorities of the Union of India, who were respondents in W.P. No. 3075 of 1996 against the order of a learned Single Judge of this Court dated 7 -3 -1997 in W.P. No. 3075 of 1996, whereunder the learned Single Judge was pleased to allow the writ petition filed by the respondents herein seeking for the issue of a writ ofcertiorarified mandamuscalling for the records pertaining to the order of the second appellant in Original No. 2/AC/1996, dated 31 -1 -1996 and consequently, direct second appellant -second respondent to restore Sony television set 29 "made in Japan with the other goods seized by the customs officers from the shop of the father of the appellants -respondents at Ahmedabad on 15 -11 -1995 as per the list of items seized specified as Ex. C in the affidavit of the writ petitioners respondents herein filed in support of the writ petition, to the writ petitioner No. 1, at Madras or writ petitioner No. 2 at Ahmedabad, or in the alternative to pay a sum of Rs. 68,200/ - or such further or other sum as the Court may direct.

(2.) RESPONDENTS herein are said to be the sons of Dadamchand Jain, respondent No. 1 being the elder and respondent No. 2 being the younger. The first respondent has filed the affidavit in support of the writ petition filed in this Court. He is a native of Dadal in the District of Jalora, Rajasthan and he is said to be residing at No. 5/8, Narayana Mudali Lane, Madras -79 and the second respondent is said to be carrying on business in general merchandise and plastic novelties at Ahmedabad and both are said to be aggrieved by the impugned order dated 31 -1 -1996 passed by the second appellant herein. The case as projected by the deponent in the affidavit filed in support of the writ petition is that he had come down to Madras at the invitation of his father -in -law to commence his own business and is staying in Madras for more than a year preceding the filing of the affidavit, that his father -in -law had promised to gift a colour Television set to his wife and accordingly, he had purchased one Sony colour Television set 29" * made in Japan in his name from an air passenger Sellaiyan Karunanidhi on 10 -11 -1995 for Rs. 65,000/ - that he wanted to install the television set at his native place in Rajasthan and therefore, booked the same to Ahmedabad under the name of his wife 'Neelam' through a courier known to him rendering courier service in the name and style of "Tirupati Air Cargo" between Madras Ahmedabad and that he informed his younger brother, the second respondent, who is staying with his father and doing business in general merchandise, over STD to release the television set from the courier and keep it in the house in tact, and so as to enable him to carry the same to his native village during the return journey to Rajasthan in the following week. While matters stood thus, the parcel sent was intercepted by the Customs Officials from the courier's Office at Ahmedabad on 15 -11 -1995 and after recording the statement from the owner of the courier service, one Ranjit Singh, the television set has been seized under a panchanama on 15 -11 -1995. It is further stated that the customs officers also raided the shop of the father of the respondents at Ahmedabad and recovered some non -notified imported goods from the shop, of the value of Rs. 3,200/ -. The Customs Officers also recorded a tutored statement of his brother in vernacular, the English translation of which is also annexed to the affidavit. Thereupon, the second appellant issued a show cause notice dated 27 -11 -1995 to the second respondent herein, calling upon him to show cause as to why the television set and other goods seized on 15 -11 -1995 under two different panchanamas should not be confiscated and why penalty under Section 112(a) and (b) of the Customs Act be not imposed on him. The second respondent was said to have submitted a reply dated 12 -12 -95 and he also was said to have produced the original baggage receipt No. 016809, dated 1 -11 -1995 and the affidavit executed by the air passenger S. Karunanidhi dated 10 -11 -1995. It is also stated that on the basis of certain earlier notifications and orders of the Appellate Authority, the second respondent explained to the second appellant that the seizure of the television set and other non -notified goods was, illegal and unwarranted and requested to release the same and drop further proceedings against him. The second appellant, despite all these, was said to have passed an order dated 31 -1 -1996 ordering confiscation of the television set and other miscellaneous goods and also imposing a personal penalty of Rs. 7,500/ - against the second respondent.

(3.) THE appellants, who are respondents in the writ petition, have filed their counter affidavit contending among other things that the writ petition was not maintainable in this Court and also could not be filed without exhausting the alternative remedies, which are said to be effective. Further, the counter affidavit disclosed the circumstances under which the seizure of the television set as also the other goods was made and also contending that the action initiated and also the impugned order passed, were all in accordance with law. It is also stated for the appellants in the counter affidavit that the television set in question is of foreign origin, that the second respondent all along claimed that the television set was purchased for him, that initially he did not produce any records and it is subsequently only, the material claimed to have been produced has been actually produced, that on enquiries made through the customs office at Tiruchirapalli, it was informed that the address of the air passenger as given in the documents produced by the second respondent, was found to be fictitious, and it is only taking into account all the relevant materials, the impugned order came to be passed and the same is unassessable. The further claim was that the first respondent never came before the second appellant claiming ownership at any time before the filing the writ petition in this Court, that when the show cause notice was issued to the second respondent, even in the reply he alone had asserted ownership of the goods and that the various grounds of challenge urged in the writ petition are untenable and devoid of merits. The appellants had reiterated in the counter affidavit the stand that the television set covered in the baggage was an old and used one, unlike the television set in question, which was found in original packed condition having the literature manual etc., and that the television set in question is not the same television set, which has been claimed to have been cleared from Thirunvanandhapuram Airport under the baggage receipt produced before the authorities. The further stand taken was that though the television set and other goods seized by the customs officials on 5 -11 -1995 are neither notified goods nor covered under Chapter IVB of the Customs Act, 29" colour television set falls under the negative list of Import, Part II, Chapter XV of 156 restricted items as classified (Vide Export and Import Policy) and consequently, the import of such items to India without special import licence was prohibited pursuant to Sections 3 and 4 of the Imports and Exports (Control) Act, 1947, read with Foreign Trade (Development and Regulation) Act, 1992 and consequently, such prohibition and restrictions are deemed to have been imposed under Section 11 of the Customs Act, 1962 as for the maintainability of the writ petition in this Court, it was stated for the appellants in their counter affidavit that the cause of action arose only at Ahmedabad and therefore, there is no jurisdiction for the Courts at Madras, to entertain and deal with the same on merits.